Facts and fiction relating to the deterrent potential of Motorola Mobility's patent portfolio

While patent applications become public after 18 months, the terms of license agreements are typically confidential business information, and so far companies' litigation strategies. As a result, there's plenty of opportunity for make-believe artists to create and propagate myths because they know they can't be conclusively disproven, no matter how unlikely or even implausible their stories may be.

There's any number of reasons for which someone may claim that thanks to Google's purchase, Android was somehow safer from patent assertions than before. That someone may simply work for Google. Or may be a friend of Google's. Or may have grossly overrated those patents in 2011/2012 and has come to realize but doesn't want to acknowledge it. Or may still not get it.

The only thing certain in this context is that the deal involved too many patents and patent applications for anyone to be able to perform a complete, definitive clearance of every single one of them. But sophisticated litigants know which categories of patents to focus on, and they have the resources and the experience to quickly evaluate the most relevant ones. Still, it's obviously preferable for Google to go into negotiations with some remaining uncertainty surrounding the strength of its patent holdings. With the tiny portfolio it had before the Motorola deal, it was too easy for its rivals to perform clearance. However, by now Google is filing thousands of patent applications per year, diminishing the benefit of those Motorola patents going forward.

Other than the challenge of definitive clearance of a portfolio of tens of thousands of IP assets, it's difficult to find hard facts in support of claims that the deal served its purpose, and actually easier to find strong indications to the contrary. If Motorola had been a more successful litigant, then it would have had serious leverage and Google could probably have converted that leverage into global Android patent peace. But that didn't happen. Instead, there are those make-believe artists -- the patent-related equivalent of astrologists -- that fool the gullible.

Knowing that my readership includes many professionals who want to find out about what's really going on in the smartphone IP arena, I'm now going to provide a list of facts (in no particular order and with some overlaps between items) that, all taken together, support the positions of Motorola patent skeptics (like me):

In the following bullet points I'll look more closely at what those -- and other -- strategic right holders have been doing since the Google-Motorola deal.

It's unsurprising that Apple decided to focus on the dispute with Samsung. This focus is so obviously driven by market dynamics it can hardly be attributed to Google's acquisition of Motorola Mobility.

Apple may not have brought a new patent infringement lawsuit against Android since the formal closing of the Google-Motorola deal in late May 2012 -- at least I'm not aware of any lawsuit that was filed after that date, though there's so much litigation going on between these parties around the globe that I can't even rule it out. But the focus on the formal closing date of the "Googlorola" deal is wrong in any event. The deal was announced in August 2011, and cleared by U.S. antitrust enforcers (i.e., in the jurisdiction in which both deal partners were based) and the European Commission in mid-February 2012. If Motorola's patents had had much of a deterrent potential, the behavior of litigants would have been affected by the announcement of the deal in August 2011 and, additionally, by U.S. and EU clearance in February 2012. However, Apple kept filing patent infringement claims against Android not only after the announcement of the merger agreement but also in the period between U.S./EU clearance and formal closing. Examples:

February 10, 2012: German rubber-banding lawsuit against Samsung (Apple previously sought a preliminary injunction over this one in another German court; that petition was also filed well after the announcement of the Google-Motorola deal)

When Apple and HTC settled in November 2012, various German lawsuits were withdrawn before a first hearing had taken place in Munich, a court that typically holds a first hearing within a few months of the filing of a complaint. Some of those cases might have been filed even after the formal closing of the Google-Motorola deal; at least they were undoubtedly filed after the announcement of the Google-Motorola deal in August 2011.

Microsoft has consistently advocated licensing -- not litigation -- as the solution to the Android IP problem and continues to do so. That's why one needs to focus on licensing more so than on litigation when looking for indications that Microsoft's IP assertions against Android were (or were not) affected by the Google-Motorola deal. Microsoft has announced 20 royalty-bearing Android patent license deals with device makers and manufacturers. 15 of those 20 deals -- three-quarters -- were struck after the announcement of the Google-Motorola merger agreement. The most notable licensees who signed up between the merger agreement and U.S./EU clearance are Acer, LG and Samsung. After the formal closing of the acquisition, Microsoft signed eight of the 20 Android license deals, most notably the ones with Foxconn and ZTE. If the Motorola deal had achieved what Google once hoped it would (in the aforementioned corporate blog post, Google complained about Microsoft seeking royalties from Samsung and other Android OEMs), someone would have had to refuse to take a license from Microsoft in hopes of Google using Motorola's patents to solve the problem through a global cross-licensing agreement. But no one in this industry apparently believed Google would be able to help in any way, so Microsoft kept on signing up licensees.

Nokia has already obtained several patent infringement rulings against HTC in multiple jurisdictions and is also suing ViewSonic, a lower-priority target. In a Friday blog post I pointed out that Nokia started those disputes shortly before the formal closing of the Google-Motorola deal (but well after the announcement and U.S./EU regulatory clearance) and has kept filing new assertions against HTC ever since. In fact, Nokia's lawsuits in five of the seven jurisdictions in which it's suing HTC were filed after the formal closing of the Google-Motorola deal. New filings were also added in the two jurisdictions in which the dispute with HTC started (U.S. and Germany).

Google obviously couldn't countersue Rockstar itself over any Motorola patents: Rockstar doesn't make any products. Its owners do. It's unknown how much influence the owners have over Rockstar's management's decisions to bring and pursue patent assertions, and presumably none of the owners can singlehandedly instigate or settle litigation. Still, Rockstar's owners are well-known industry players and not hiding behind a front company. If they feared that Google would sue them aggressively over Motorola's patents (and other patents it holds), then I believe (though I can't prove it) these lawsuits wouldn't have happened.

Google's purchase of Motorola Mobility has not had any measurable impact on third-party patent assertions against Android. Instead, there are various indications that the Android patent mess remained the same after the announcement and even the formal closing of the deal. However, the acquisition enabled Google to prevent internecine wars among Android device makers: Motorola was making thinly-veiled threats in that regard.

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About Me

Florian Mueller is a former award-winning intellectual property activist with 25 years of software industry expertise spanning across different market segments (games, education, productivity and infrastructure software), diverse business models and a variety of technical and commercial areas of responsibility. In recent years, Florian advised a diversity of clients on the patent wars surrounding mobile devices, and on their economic and technical implications. (In order to avoid conflicts of interest, Florian does not hold or initiate transactions in any technology stocks or derivatives thereof.) He is now developing a game app for smartphones and tablet computers.